Comparing Islamic and International Laws of War
Orthodoxy, "Heresy," and Secularization in the Category of Civilians
Bibliographic Data
| ID | 4986596 |
|---|---|
| Authors | Lena Salaymeh (University of Oxford, corresponding author) |
| Year | 2021 |
| Volume | 69 |
| Issue | 1 |
| Pages | 136-167 |
| Publication date | 2021-10-19 |
| Peer Reviewed | Yes |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | The American Journal of Comparative Law (JOURNAL) |
| Journal identifiers | ISSN: 0002-919X • E-ISSN: 2326-9197 |
| Publisher | Oxford University Press (OUP) (PUBLISHER) |
| DOI | 10.1093/ajcl/avab001 |
| OpenAlex | W2996069316 |
| Language | EN |
| Citations received | 4 |
This Article investigates how contemporary laws of war rationalize civilian deaths. I concentrate on two specific legal constructions in warfare: the definition of civilian/combatant and the principle of distinction. (The categories of civilian and combatant should be understood as dialogically constitutive and not entirely distinct. In addition, the category of "civilian" is a modern one and premodern legal sources often do not use one term to refer to noncombatants.) I focus on two significant parties in contemporary warfare: al-Qāʿidah (aka Al-Qaeda) and the U.S. military. Al-Qāʿidah diverges from orthodox Islamic law on these two legal issues, while remaining within the Islamic legal tradition. To scrutinize the nature of this divergence, I compare al-Qāʿidah's legal reasoning to the legal reasoning of the U.S. military. I demonstrate that the U.S. military diverges from orthodox international law in ways that parallel how al-Qāʿidah diverges from orthodox Islamic law. Specifically, both the U.S. military and al-Qāʿidah elide orthodox categories of civilians and expand the category of combatant, primarily by rendering civilians as probable combatants. Based on this comparative analysis, I argue that the legal reasoning of al-Qāʿidah (and other militant Islamist groups) is as secular as it is Islamic; I call this fusion secularislamized law
Combatant · Comparative law · Heresy · International humanitarian law · International law · Islam · Law of war · Legal pluralism · Legal realism · Orthodoxy · Political science · Sharia · Sociology · Theology · American Constitutional Law and Politics · Law · Philosophy · Terrorism, Counterterrorism, and Political Violence · War, Ethics, and Justification
| Unique citing works | 4 |
|---|---|
| Citations per year | 0,8 |
| Citation span | 2021 - 2026 (6) |
| Citation velocity | current |
| Highly cited | No |
| Citation types | Neutral: 4 |